1. The Inter-American Commission on Human Rights (the "Commission")
initiated its review of this case on May 27, 1994, on the basis
of a
complaint that can be summarized as follows: The Federal Republic
of Brazil (the "State" or "Brazil") violated
the American Human Rights
Convention to the detriment of João Canuto de Oliveira,
a Brazilian citizen who was murdered, by failing to provide him
with due protection
when he reported to the competent state and federal authorities
that he had received death threats, and by the ineffectiveness
of the State in
conducting an efficient investigation and judicial proceedings
subsequent to his assassination.

João Canuto was a labor union leader of rural workers
in Río María del Sur, in Pará State. After
he was assassinated on February 18, 1985,
his two sons were also murdered, as were the next two presidents
to succeed him at the head of the Río María Union
of Rural Workers. In
addition, members of his family and rural leaders linked to that
labor association were wounded.

The complaint gives the following information:

a) On December 18, 1985, João Canuto, who at the time
was president of the Río María Union of Rural Workers,
Pará
State, was assassinated by two gunmen in the context of a dispute
over lands between farmers and the owners of the
Canaã Plantation, which had earned him the enmity of the
local landholders.

b) João Canuto had been warned that the local landholders
and politicians, including the Río María mayor at
the time,
were conspiring to kill him and that they had hired gunmen for
that purpose. This situation was reported by João Canuto
to the local police, but the police did not offer him protection.

c) According to statements by witnesses, a gunman who appeared
at the offices of the Río María Union of Rural
Workers reported that the death of João Canuto had been
"ordered by Laranjeira (in reference to the then-Mayor of
Río
María, Adilson Carvalho Laranjeiras) and by somebody from
Canaã". According to that testimony, the threats to
the life
of João Canuto were blatant and were common knowledge.

d) According to the files of the case being processed by the
Pará Court of Justice, a group of local politicians and
influential landowners, including the then-Mayor of Río
María, had conspired to assassinate João Canuto,
and in the
more than nine years since the event occurred, no suspects for
the murder of João Canuto have been arrested or tried,
despite the existing evidence.

e) According to the complaint, the investigation was conducted
in a negligent manner and was not concluded until
1993, after three judges, four prosecutors, and six police officers
had participated in it. Three individuals were arrested
early in the course of the investigation, but they were later
released. Two of them were set free as a result of a habeas
corpus filed on their behalf, and the other was released for health
reasons, without being asked to provide information
so that he could located or detained again at a later date. 1

f) The Division for Political and Social Order (DOPS), the
special police that investigated the crime, concluded that at
least five persons were clearly implicated in the murder of João
Canuto and it recommended their arrest. Despite this,
the corresponding arrest warrants were never issued until the
complaint was filed with the Commission. These persons
included influential landholders, local politicians, and two gunmen,
who went by the names of Gaspar Roberto
Fernándes, Jandir Alves de Paula, Vantuir Goncalves de
Paula, Ovidio Gómes de Oliveira, and Adilson Carvalho
Laranjeira.

g) Various testimonies indicated that there were 20 more landholders
implicated in the conspiracy to kill João Canuto,
but that the involvement of those landholders in the conspiracy
was never adequately investigated by the police. In this
regard, the complainant indicated that even a judge, who was subsequently
transferred, told Amnesty International that
the police had obstructed the investigation.2

h) The complaint also states that there were irregularities
in the legal proceedings, such as the fact that ten statements
by witnesses were lost, including one that implicated various
important landholders, and so the witnesses had to be
deposed a second time.

The complaint goes on to say that despite the fact that the
investigation has been concluded, none of the suspects was ever
tried for the
murder of João Canuto. As a result of the impunity and
ineffectiveness of the Brazilian legal system in the case of the
murder of João Canuto,
two of his sons were murdered, and another was seriously wounded
following an attempt on his life. In addition, two other presidents
of the Río
María Rural Workers Union were murdered, and another was
the victim of an attempt on his life. The complaint concludes
by stating that the
acts committed are a violation, inter alia, of Articles 8, 25,
and 1 of the American Convention on Human Rights and Articles
1 and 5 of the
American Declaration of the Rights and Duties of Man.

2. The Government was informed of the complaint on May 27,
1994, and following three extensions granted by the Commission,
it filed its
response on November 22, 1994, in which it indicated, inter alia,
that the police investigation into the murder of João Canuto
was completed in
July 1993, that penal action to determine the criminal responsibility
of the persons possibly implicated was still being pursued, and
that
therefore the internal legal remedies had not been exhausted.

3. On May 11, 1995, the petitioner filed his comments on the
Government's responsive brief and stated, inter alia, that an
exception to the rule
of exhaustion of internal legal remedies, as stipulated in Article
46.2.c of the Convention, should apply in the case in point. The
petitioner
reiterated that in addition to the fact that the police investigation
was not thorough and effective, it was also excessively long and
protracted.
Petitioner added that up to that date, i.e., May 11, 1995, the
case was still held up in the Prosecutor's Office, and that the
Prosecutor had never
filed any charges with the relevant court, in spite of the fact
that there was sufficient evidence to establish the guilt of five
suspects. It further
stated that the police investigation contained various statements
of testimony confirming that João Canuto had notified the
appropriate
authorities of the death threats he had received and had then
asked them for their protection, but they did not grant the requested
protection.

The petitioner concluded by pointing out that the investigation
did not meet the minimum requirements of speediness, since besides
taking
eight years to be completed, no progress was achieved in convicting
the responsible parties. It indicated that the Government had
been
negligent by failing to institute legal proceedings against the
suspects on the basis of the police investigation, and that now
that almost 18
months have gone by since it was concluded, the case is still
held up in the Prosecutor's Office, and the corresponding information
has never
been issued.

4. On December 18, 1995, the Government filed its final comments,
in which it stated, inter alia, that the Public Prosecutor for
the State of Pará
had delivered to the Ministry of Justice a copy of the information
containing the formal charges of aggravated homicide issued earlier
in the
month against the persons accused of the murder of João
Canuto, known by the names of Adilson Carvalho Laranjeira, Vantuir
Goncalves de
Paula, Ovídeo Gomes de Oliveira, Jurandir Pereira da Silva,
and Gaspar Roberto Fernandes. The Government concluded by stating
that the
General Coordinator of the Committee for the Protection of Human
Rights in the National Justice Ministry would organize a meeting
between
the representatives of the Ministry and the State Secretaries
of Justice and Public Security, so that they could work out a
strategy for
cooperation to improve the situation of death threats and impunity
in Pará State, and by stressing the importance of having
avoided impunity in
the case of João Canuto.

5. In this way, the regulatory procedures in this case before
the Commission were completed, and a letter was sent to the Government
on
January 24, 1996 to notify it of that fact.

6. The Commission is now going to consider the facts communicated
by the parties in additional reports receiving during the processing
of this
case:

a. Letter of September 16, 1994 from the petitioner which states,
inter alia, that after nearly nine years, the case has still not
progressed to the
trial stage and that the police investigation into the murder
of João Canuto was concluded on July 27, 1993, or almost
eight years after the
murder took place, and that said investigation showed that five
persons were implicated in the crime. The petitioner concludes
his letter by
pointing out that on August 30, 1993, the case was sent to the
Office of the State Prosecutor in the city of Belém, but
that there had been no
further progress on the case to date.

b. Letter of September 6, 1995, from the Government in which
it states, inter alia, as follows: that the documents on the police
investigation into
the death of João Canuto had been turned over to the Public
Prosecutor, Manoel Santino Nascimento Junior, on November 5, 1993;
that the
necessary steps to correct the irregularity had been taken; that,
in addition, said Prosecutor was preparing the information, which
was
expected to be issued in the next 20 days; and that the Human
Rights Committee of the National Justice Ministry reported that
contacts had
been initiated with the attorney of the victim's family to present
a secondary information in the event that the Office of the Public
Prosecutor
[Ministerio Público] should fail to proceed further on
the matter.

c. Letter of September 11, 1995 from the petitioner in which
it states, inter alia, as follows: that there was an excessive
delay in processing this
case and that the Government of Brazil failed in its responsibility
to investigate adequately and punish the persons responsible for
the death of
João Canuto; that there had been absolutely no progress
made in the case, and that even though the report of the police
investigation had
been in the hands of the prosecutor since July 1993, no charges
had been filed, despite the large amount of evidence pointing
to the criminal
responsibility of five persons; and that, as a result, the Government
of Brazil had failed to comply with its obligation to investigate
and punish
the persons responsible for the crime.

d. Letter of October 6, 1995 from the petitioner which states,
inter alia, as follows: that the police investigation was finally
wrapped up on July
27, 1993, or in other words nearly eight years after the crime
occurred; that the Division of Political and Social Order had
requested that five
persons be arrested and placed in custody pending trial; that
on August 30, 1993, the Division of Political and Social Order
sent the case to
the Office of the Public Prosecutor in Belém, but that
no significant action had been taken on this case since that time.

7. In accordance with Articles 58 and 59 of the Commission's
Regulations,3 it is appropriate to refer to the facts that are
gleaned from the
information on this case which was collected during the on-site
visit to Brazil which took place December 4 to 8, 1995, when a
delegation from
the Commission visited Río María. Together with
the Director of the Human Rights Committee of the Ministry of
Justice and a legal
representative from Brazil's Foreign Affairs Ministry, the Commission
took testimony from members of João Canuto's family, other
leaders of
the Río María Rural Workers' Union, the public defenders
of the victims, the judicial authorities, the prosecutors, and
municipal officials. During
this time, and with the assistance of representatives from the
Brazilian State, the following was ascertained:

a. That the police investigation was opened on February 20,
1986 and concluded seven years later in July 1993, and that as
a result of that
investigation, it was requested that five persons implicated in
the crime be taken into custody pending trial. The order was never
issued, as the
case was sent on to the Office of the Public Prosecutor, where
it has been since August 30, 1993, waiting for the corresponding
information to
be issued.

b. That on August 31, 1995, a Committee comprising federal
deputies and deputies from Pará State--which was confirmed
by a letter dated
September 12, 1995, sent by Deputy Nilmario Miranda to the State
Prosecutor, and which appears on page 85 of the file--and members
of
nongovernmental organizations met with the Attorney for Pará
State, Dr. Edith Marília Mara Crespo, who promised that
the Public Prosecutor's
Office would file charges within eight days.

c. That in a letter dated September 4, 1995, sent by the Pará
State Attorney to the Chairman of the Río María
Committee, it was stated that
Prosecuting Attorney Manoel Santino had not yet responded on the
filing of the charges in relation to the murder of João
Canuto.

d. That Prosecutor Manoel Santino Nascimento Junior, in a meeting
with the legal representative of the victims, Attorney Frei Henri
des
Roziers, confirmed that the case had been in the Prosecutor's
Office for two years and he promised to present an information
in the next few
days. This promise was repeated during a hearing held with a group
from the Río María Committee. On October 18, 1995,
Dr. Santino
reported that he had delegated authority to Prosecutor Francisco
Barbosa to issue the information. Finally, in a letter dated October
18, 1995
and addressed to the Public Prosecutor for Pará, Deputy
Nilmário Miranda requested that the charges in relation
to the murder of João Canuto
be filed immediately.

e. Following other promises made by the new Public Prosecutor
on October 2 and 31, 1995, it was not until the delegation from
the
Inter-American Commission on Human Rights visited the Office of
the Public Prosecutor in Belém do Pará on December
11, 1995 that the
information in question was finally issued.

f. On 18 December, 1995, the Government of Brazil sent letter
332 to the Commission, which stated as follows: a) The Public
Prosecutor for
Pará State had forwarded to the National Justice Ministry
a copy of the official information containing the charges against
the persons accused
of the murder of João Canuto; and b) The General Coordinator
of the Council for the Protection of Human Rights (CDDPH) had
pledged to
organize a meeting between representatives from the National Justice
Ministry and the Justice and Public Security Secretaries for Pará
State
with a "view to developing a common strategy for improving
the situation in Pará State."

8. In accordance with Article 48.1.f. of the Convention, the
Commission placed the case before the parties at its 90th Regular
Meeting held in
March 1996, to try to arrive at a friendly settlement. On this
point, the petitioner indicated in a letter dated October 10,
1995 that it was
interested in reaching a friendly settlement. On October 23, 1995,
the Commission sent a note to the Brazilian Government advising
it that it
would be given a period of 45 days in which to inform it as to
whether or not it was interested in seeking a friendly settlement
in that case, and
that if it did not notify it of its position in that time, the
possibility of arriving at a friendly settlement would be considered
as exhausted. The
Government did not notify the Commission of its position within
that period of time or subsequently.

9. On December 26, 1996, the petitioner reported "the
disappearance from the court of the records for Criminal Case
No. 0047/90, originating
in Xinguara District, Pará State, which the Public Prosecutor's
Office was bringing against Jose Ubiratan Matos Ubirajara, Geraldo
de Oliveira
Braga and others accused of the attempted murder of Orlando Canuto
and the murder of the brothers Jose and Paulo Canuto, which occurred
on April 22, 1990". This information was transmitted to the
Government, along with a request to provide information prior
to February 20, 1997,
but no reply was ever received on this point.

Bearing this information in mind, the Commission will now consider
whether it is competent to take up this case.

II. JURISDICTION OF THE COMMISSION

10. According to Articles 26 and 51 of its Regulations, the
Commission is competent to hear and issue an opinion on this complaint
of a
violation of the right to life and security, as established in
the American Declaration of the Rights and Duties of Man.

11. The Commission is also competent to examine complaints
against the Brazilian State regarding violations of human rights
established in
the American Convention on Human Rights and Article 26 of its
Regulations.

12. In the first place, based on the American Declaration of
the Rights and Duties of Man, it has competence in relation to
certain events
reported in the present complaint which occurred prior to September
25, 1992, the date that Brazil deposited its instrument of ratification
of the
American Convention on Human Rights.

13. In the second place, the Commission also has jurisdiction
to examine the events, which in this case include the police investigation
and
subsequent proceedings, that occurred after September 25, 1992,
inasmuch as they constitute a violation or continued denial of
the right to
judicial guarantees (Articles 8 and 25 of the Convention, respectively).
When the State of Brazil deposited its instrument of accession
to the
American Convention, pursuant to the case law of the Court and
the Commission, it assumed the specific international obligation
to investigate
and punish the guilty parties for both the execution and the planning
of the assassination of João Canuto, and to offer the pertinent
judicial
guarantees and judicial protection for the victim and his family
members. In analyzing whether the Brazilian State complied with
this
international obligation, consideration must be given to the excessive
delays both in conducting the judicial investigation and in filing
the
charges with the appropriate courts, which occurred ten years
after the murder. In this process, it must be determined whether
the State of
Brazil complied with the provisions of Article 1.1 of the Convention,
namely the duty to respect the rights and freedoms recognized
therein and
to guarantee that all persons under its jurisdiction may freely
and fully exercise them. In the opinion of the Commission, and
as stated by the
Inter-American Court of Human Rights, from these duties is derived
the duty to organize the entire Government apparatus and the institutions
through which public authority is exercised to ensure that they
are capable of legally guaranteeing the free and full exercise
of human rights.
Also arising from these duties is the duty to prevent, investigate,
and sanction to which we just referred and the duty to reinstate,
if possible, the
violated right and, if appropriate, to pay compensation for the
damages caused.4

14. Consequently, pursuant to Article XVIII of the American
Declaration, the Commission has jurisdiction ratione temporis
to hear and issue an
opinion in this case regarding possible violations occurring prior
to official ratification of the Convention on September 25, 1992,
and it also
has jurisdiction pursuant to the American Convention, with regard
to acts and procedures carried out by the Brazilian justice system
inasmuch
as they may constitute a continuous violation of Articles 8 and
25 of the Convention, considered together with Article 1.1 of
the same.

15. On this last point, the Commission considered it important
to take into account the case law of the European Human Rights
Commission.
Even though it has recognized and repeatedly applied the principle
of the non-retroactivity of treaties,5 in some of its opinions
it has drawn a
distinction between this type of situation and others, which constitute
situations or violations of a continuous nature. The European
Commission
has found that it was incompetent ratione temporis to hear cases
pertaining to the first type of situation, but it has found that
it was within its
scope to examine situations of a continuous nature.

16. On this point, the European Commission had the following
to say:

Nevertheless, in accordance with the generally accepted principles
of international law, the Convention is valid for all the Contracting
parties
only as it pertains to events occurring subsequent to its entry
into force for that Party. In the case that those events consist
of a series of legal
proceedings which extend over several months' time, the date of
entry into force of the Convention for the State Party in question
serves to
divide the period into two parts: the first part falls outside
the jurisdiction of the Commission, while the second part cannot
be rejected on the
basis of those arguments. 6

17. Along these same lines, the European Commission stated
as follows on another case related to application of Article 25
of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms and its protocols:

According to the case law of the European Court of Human Rights
and the Commission, the time period to be taken
into account for the purposes of Article 6(1) of the Convention
begins at the time that the initial charges are filed against
the defendant and ends when there is a judgment on the merits
of those charges, either to convict the defendant or to
absolve him. The Commission must consider the fact that Italy
recognized the jurisdiction of the Commission to hear
petitions filed in accordance with Article 25 of the Convention
only in reference to acts, decisions, events, or incidents
that occurred after July 31, 1973. 7 Therefore, the Commission
is not competent, ratione temporis, to investigate events
that occurred prior to August 1, 1973.

18. On the applicability of this legal doctrine of the European
Commission to the inter-american system, the following opinion
has been put
forward:

... the doctrine according to which the European Commission
and the Human Rights Committee of the Civil Rights Pact
have jurisdiction to take cognizance of events occurring prior
to the date of entry into force of the Convention for a
specific State, provided and to the extent that those events are
likely to result in a continuous violation of the Convention
extending beyond that date, is applicable to the Inter-American
system.8

III. ADMISSIBILITY OF THE PETITION

19. This petition fulfills the formal requirements for admissibility
as stipulated in Article 46(c) and (d), Paragraph 1, of the Convention,
since the
subject of the petition is not dependent on another proceeding
under international law. It also meets the requirement contained
in (d), as it
contains the name and signature of the legal representative of
the institution that filed the petition, which is a nongovernmental
organization
recognized in one or more member states of the organization. Likewise,
the petition is written on the letterhead paper of that organization,
which shows its name and address. Further, although the profession
and nationality of the legal representative of the organization
filing the
petition is not given, the Commission finds that, based on the
Court's writing in Paragraph 36 of the judgment issued on June
26, 1987 on
preliminary objections in the Godínez case,9 the requirements
that were not observed in the complaint are, in view of their
nature,
exceptionable and exceptions have been duly made to them without
entailing disrespect of the same.

20. It is now appropriate to consider if this petition meets
the formal requirements of admissibility specified in Paragraph
1, sections a) and b)
on exhaustion of domestic remedies and the six-month period for
presentation, or, in the event it does not, if the exceptions
specified in
Paragraph 2 of those provisions apply. They state as follows:

The provisions of Paragraphs 1.a and 1.b of this Article shall
not apply in the following circumstances:

a. The internal laws of the state in question do not provide
for due legal process for protection of
the right or rights that are alleged to have been violated;

b. The person whose rights are presumed to have been infringed
has not been permitted
access to domestic legal remedies, or has been prevented from
exhausting them; and

c. The decision regarding those remedies has been unjustifiably
delayed.

21. In this regard, the Government of Brazil has filed a preliminary
objection of failure to exhaust internal legal remedies, based
on the fact that
those remedies are still in process.

22. The petitioner, in turn, has alleged that the domestic
legal remedies were ineffective and that there was an unjustified
delay in the
investigation and processing of the case against the perpetrators
of the assassination of João Canuto, and that the exception
specified in
Article 46.2.c of the Convention applies.

23. The Inter-American Court of Human Rights has written as
follows:

The rule of prior exhaustion of domestic remedies permits the
State to settle the problem according to its internal law
before it is faced with international proceedings. This is particularly
valid in international human rights law, since it
contributes to or complements internal law (American Convention,
Preamble). 10

24. According to the Court, this rule has implications that
are contemplated in the Convention. One of them is the obligation
assumed by the
States Parties to provide effective domestic legal remedies to
victims of human rights violations (Article 25 of the Convention),
and another is
that these remedies must be examined in accordance with the rules
of due legal process (Article 8.1 of the Convention). All of this
is to take
place within the scope of Article 1.1 of the Convention, which
establishes the State's obligation to guarantee to persons under
its jurisdiction
the free and full exercise of the rights recognized by the American
Convention on Human Rights.11

25. It is evident that the burden of proof regarding exhaustion
of internal legal remedies falls on the State that is alleging
their non-exhaustion.
This includes the duty to indicate the internal remedies that
must be exhausted and their effectiveness.12 The Court has also
maintained that "if
the State proves the existence of certain internal remedies that
should have been used, the burden of proof is reversed and it
is the
responsibility of the petitioner or the author of the report to
demonstrate that those remedies were exhausted or that the case
falls within the
scope of one of the exceptions referred to in Article 46.2 of
the Convention..." In addition, since the requirement of
the petition is established in
the Convention,13 because the inter-american system is subsidiary
and contributory to domestic laws, it is the responsibility of
the author of
the report or the petition to allege said prior exhaustion, or
the reasons why he considers that the exceptions stipulated in
Articles 61 and 63
are applicable to the case.

26. In this case, the State of Brazil confined its allegation
to the non-exhaustion of said remedies, without enumerating which
of them might
have been used. Moreover, it did not diminish the merit of the
allegations related to the ineffectiveness of the remedies that
were attempted,
nor did it present any documentary evidence in this regard.

27. Because the State of Brazil did not object to the majority
of the petitioners' allegations, and did not justify the delay
and the ineffectiveness
of the internal legal remedies, the Commission must draw its conclusions
in the absence of a more active participation by the Brazilian
State.14 It must also consider the allegations and evidence presented
by the petitioner regarding the delay and ineffectiveness of the
domestic
remedies in this case.

28. According to court records, in the course of this year,
after more than ten years have lapsed since the murder of João
Canuto, and after the
case was held up in the Prosecutor's Office for two years, the
charges of aggravated homicide were filed against the five persons
implicated in
the assassination that was the subject of the a police investigation
which in turn took seven years and six months to complete.15

29. However, "the foundation of the international protection
of human rights" which is referred to in Article 46.1 of
the Convention, "lies in the
need to safeguard victims from the arbitrary exercise of public
authority."16 The exceptions contemplated in Article 46.2
of the Convention
seek precisely to guarantee international action whenever internal
legal remedies, and the internal judicial system itself, do not
prove to be
effective in guaranteeing respect for victims human rights.

30. In this way, the formal requirement regarding nonexistence
of internal remedies that guarantee the principle of due process
(Article 46.2.a
of the Convention) refers not only to a formal absence of internal
legal remedies but also to the case in which said remedies are
inadequate.
Denial of justice (Article 46.2.b of the Convention) and an unjustified
delay in serving justice (Article 46.2.c of the Convention), however,
are
also linked to the effectiveness of those remedies.17

31. In this sense, the generally accepted principles of international
law refer both to the fact that internal remedies formally exist
and to the fact
that they are adequate to protect against the legal situation
that was violated, and effective in leading to the result for
which they were
conceived.18 This is why their exhaustion should not be interpreted
as the need to carry out mechanically the formalities in question,
but rather
that the reasonable possibility of obtaining the remedy should
be analyzed in every case.19 Therefore, the right to cite non-exhaustion
of
internal legal remedies as the grounds for declaring a petition
inadmissible may not lead to a situation in which "international
action to assist
the defenseless victim is held up or delayed to the point where
it is useless."20 This means that if the processing of internal
remedies is
delayed unjustifiably,21 it can be concluded that they have lost
their effectiveness to produce the result for which they were
established,
"thereby placing the victim in an unprotected condition."22
It is in this instance that international protective mechanisms,
including the
exceptions specified in Article 46.2 of the Convention, should
be applied.

32. In the case in point, the Government did not refute the
arguments of the petitioner pertaining to the ineffectiveness
of the internal remedies
attempted. It also had an opportunity to refute the allegations
by the petitioner regarding the delay and lack of diligence in
the police
investigation, and the failure of the Public Prosecutor, who was
responsible for initiating proceedings, to issue the information.

33. The facts in evidence indicate, however, that over ten
years have gone by since the events occurred,23 and that not one
of the five persons
suspected of planning and carrying out the homicide of João
Canuto has yet been punished.

34. By virtue of the foregoing, the Commission considers that
the exception provided for in Article 46, section 2, Paragraph
c) of the
Convention, referring to the unjustified delay in the decision
related to the domestic legal remedies, is applicable to this
case.

A. Responsibility of the Federal Republic of Brazil for the
Acts and Omissions of its Institutions and Agents

36. Before going straight into an analysis of the alleged facts
and the right presumed to be violated, the Commission believes
that it would be
appropriate to clarify why an act or omission by a State institution
entails its international responsibility.

37. On this point, Article 1.1 of the Convention is a key element
for determining the responsibility of the State with regard to
the violation of
human rights that are recognized in that legal instrument. This
provision states as follows;

The States Parties to this Convention shall undertake to respect
the rights and freedoms recognized therein and to
guarantee their free and full exercise to all persons under their
jurisdiction, without discrimination of any kind for reasons
of race, color, sex, language, religion, political opinion or
opinions of any other kind, national or social origin, economic
position, birth, or any other social condition.

38. This article clearly establishes the State's obligation
both to respect the rights and freedoms recognized in the Convention,
and to
guarantee their exercise. As a result of that obligation, the
State has the duty to "prevent, investigate, and punish"
violations of the human rights
recognized by the Convention. 24

39. Likewise, international law assigns the State international
responsibility for the behavior of its institutions and agents
when they are
operating in that capacity, even if outside the normal scope of
their functions. This includes the higher organs of the State,
such as the
Executive, Legislative, and Judicial Branches, and acts and omissions
of public officials or agents acting in their place.25

40. In a judgment handed down on July 29, 1988 (Velásquez
Rodríguez Case), the Inter-American Court of Human Rights
established as
follows:

It is a principle of international law that the State must
answer for the acts of its agents performed in their official
capacity and for their omissions, even if they were acting outside
the scope of their authority or in violation of domestic
law.26

41. In other words, in the case under study, the Federal Republic
of Brazil is responsible for the acts and omissions of one of
the public officials
of the Federal State of Pará, as represented in the person
of the Mayor of Río María at the time, who conspired
to murder João Canuto. It is
also responsible for the acts and omissions of its police officers,
who denied police protection to the victim before he was murdered,
and
subsequently took more than seven years to complete the investigation
into the murder of João Canuto. Finally, the State of Brazil
is also
responsible for the lack of diligence of the Public Prosecutor,
who just recently filed the charges with the appropriate judicial
authorities, two
years after the investigation was concluded.

42. Since Brazil is a Federal State, it is the national State
that must be held responsible in the international sphere. Article
28 of the Convention
has the following to say on this point:

1. When a State Party is a Federal State, the National Government
of that State Party shall comply with all the
provisions of this Convention related to the subjects over which
it exercises legislative and judicial jurisdiction.

2. As regards provisions pertaining to matters that fall within
the scope of the entities comprising the federation, the
national Government must immediately take the pertinent steps
pursuant to its constitution and laws, so that the
competent authorities of said entities may adopt the necessary
provisions to ensure compliance with this Convention.

43. As a result, the Commission concludes that in the case
in point, the Federal Republic of Brazil is responsible and must
answer
internationally for the violation of the right to life committed
by one of its public officials, and for the acts and omissions
of its agents and
institutions in charge of preventing the commission of illicit
acts in violation of human rights, investigating those acts and
identifying the persons
responsible for them, and initiating State action to sanction
them.

44. The Commission further concludes that it is the responsibility
of the Federal State of Brazil to take the pertinent steps, pursuant
to its
Constitution and laws, to ensure that the competent authorities
of the Federated States adopt the necessary measures to comply
with the
Convention, and especially with its Article 1.1, in accordance
with the provisions of Article 28, Paragraph 2 of that legal instrument.

V. RIGHT TO LIFE

45. On December 18, 1985, João Canuto, President of
the Río María Union of Rural Workers, was assassinated
by two gunmen. Various local
politicians and landholders were presumably involved in the assassination,
including the then Mayor of Río María, Adilson Carvalho
Laranjeiras. In view of the fact that the Brazilian State ratified
the American Convention after the events that gave rise to this
complaint, the
petitioner alleges that these events violate the right to life
of the victim, as established in Article 1 of the American Declaration
of the Rights and
Duties of Man.

46. Article 1 of the American Declaration establishes that:

Every human being has the right to life, and to personal freedom
and security.

47. This provision establishes as a basic principle that no
person may be arbitrarily deprived of his life.

48. As was pointed out earlier, it is a principle of international
law that the State answers for the acts of its agents performed
in their official
capacity, and for their omissions, even if they were operating
outside the scope of their jurisdiction or in violation of domestic
law.27 This
responsibility of the State extends to the violation of the right
to life as a result of the act or omission of Government agents,
among other
things.

49. The Commission recalls that the Mayor of Río María,
who was acknowledged to be one of the assassins of João
Canuto, was a key
member of a group of persons who owned fields and contracted workers.
This group was in open conflict with the Río María
Union of Rural
Workers and, as was supported by testimony received by the Commission's
delegation at the time of its visit, the Mayor used the connections
and power of his office to take part in acts of intimidation against
the officials and members of the Union and to maintain his own
impunity and
the impunity of his cohorts.

50. In the present proceeding, Brazil did not dispute the allegation
by the petitioner to the effect that the then mayor of Río
María, in his official
capacity and acting with the impunity granted by that office and
in control of the forces of law and order in the region, participated
in the murder
of João Canuto. On the contrary, the State admitted that
said official had participated in the murder of João Canuto
in one of its letters to the
Commission in which it stated that the mayor of Río María
at the time, Adilson Carvalho Laranjeira, was accused by the Public
Prosecutor of
having participated in the assassination of João Canuto.
On the basis of this information, the Commission finds that the
State, as a result of the
action of one of its agents, represented in the person of the
former mayor of Río María, violated the right to
life of João Canuto, a Brazilian
citizen, pursuant to Article 1 of the American Declaration.

51. At the same time, the Government did not dispute the petitioner's
argument that the police officers in question failed to offer
police
protection to the victim, despite the fact that it was public
knowledge that he had been receiving death threats, which could
find their justification
in the land dispute in which João Canuto was involved as
President of the Río María Rural Workers Union.28

52. By virtue of the foregoing, and in keeping with the principle
of international law according to which silence on the part of
the defendant or an
elusive or ambiguous response may be interpreted as acceptance
of the facts set forth in the petition, unless information to
the contrary
appears in the court documents or results from judicial conviction,29
which is not the case in this proceeding, the Commission infers
that Brazil
has tacitly acknowledged the existence of these facts and its
responsibility for them.

53. Consequently, the Commission declares that Brazil also
failed to fulfill its duty to prevent30 the commission of an illicit
act in violation of
human rights by not affording protection to the victim when he
requested it, leaving him unprotected and thereby facilitating
his subsequent
murder.31 Pursuant to the opinion of the Inter-American Court
of Human Rights, this situation occasioned the international responsibility
of the
State.32

VI. RIGHT TO JUDICIAL GUARANTEES AND JUDICIAL PROTECTION

54. The petitioner alleges in his written complaint and in
subsequent letters that the investigation triggered by the murder
of João Canuto had
proceeded extremely slowly, and that the prosecutor took more
than two years to file criminal charges. Petitioner further alleges
that these facts
constitute a violation of Articles 8 and 25 of the Convention.

55. The Commission finds that, in the first place, Article
XVIII of the American Declaration of the Rights and Duties of
Man, which speaks of the
right to justice, is applicable to this case. It states as follows:

All persons may have recourse to the courts to assert their
rights. Likewise, they should have access to a simple, brief
proceeding in which the system of justice protects them against
acts by authorities that violate, to their detriment, any of
the fundamental rights consecrated in the constitution.

56. It is now fitting to determine whether Article 8, on the
right to judicial guarantees, and Article 25, on the right to
judicial protection, both
contained in the American Convention on Human Rights, are applicable.

57. As was stated earlier, Brazil deposited its instrument
of accession to the American Convention on September 25, 1992,
at a time when, in
the case under consideration, the police investigation to identify
the persons presumed to be responsible for the murder of João
Canuto was
still dragging on.33 The obligation to investigate extends over
a period of time. The ineffectiveness of the Brazilian State in
failing to conduct a
prompt, efficient investigation constitutes in itself a specific,
independent violation of the right to life. The lack of diligence
on the part of the
Office of the Public Prosecutor by failing to file charges occurred,
however, in 1993, or after the State of Brazil had deposited its
instrument of
accession to the American Convention. The violation of the right
to justice and the duty to adopt provisions of domestic law, as
referred to in
Articles 1.1, 8, and 25 of the Convention, are also examples of
denial of justice.

58. In accordance with Article 8 of the American Convention:

All persons have the right to be heard, with due guarantees
and within a reasonable period of time, by a competent,
independent, and impartial court or judge, previously established
by law, in connection with any criminal charges
formulated against them, or to determine their rights and obligations
pertaining to civil, work, or fiscal matters, or
matters of any other sort.

59. International jurisprudence has in turn maintained the
following:

The guarantees serve to protect, ensure, or assert the entitlement
to or exercise of a right. Since the States Parties
have the obligation to recognize and respect the rights and freedoms
of individuals, they also have the obligation to
protect and ensure their exercise through pertinent guarantees
(Article 1.1), that is to say, suitable measures to ensure
that those rights and freedoms are effective in all circumstances.

60. Article 25 of the Convention reads as follows:

All persons have the right to a simple, prompt remedy to protect
them against acts that violate their fundamental rights
as recognized by the Constitution, the law, or this Convention,
even when said violation is committed by persons while
exercising their official functions.

61. In this regard, Brazil not only did not at any time dispute
the allegations made by the petitioner, but it confirmed them
in the letters that it
forwarded to the Commission regarding the case in point. The same
conclusion is reached from the information gathered by the IACHR
delegation during its on-site visit to Río María
and Belém do Pará.34

62. Taking into account the findings of the Inter-American
Court in the Genie Lacayo case,35 the Commission analyzed the
proceedings of the
case as a whole to determine whether the repeated delays in investigating
the crime and in filing the pertinent charges also affected the
right
recognized in Article 8 of the Convention, since that Article
states that the determination of the rights of the affected parties
must be carried out
within a "reasonable period of time." Article 25 of
the Convention refers to a "simple and prompt remedy."
Thus the time periods established in
Brazil's legislation on criminal procedure provide an important
criterion for assessing what constitutes a reasonable period of
time in the
framework of Brazil's internal procedures.36 The facts presented
below demonstrate that a reasonable period of time was exceeded
in the
present case:

a. The police investigation or inquiry was initiated on February
20, 1986, and it was concluded in July 1993, thus taking seven
years and six
months to complete, while Brazilian legislation gives a period
of 30 days to complete an investigation.37

b. Although the entity that completed the investigation recommended
that the five suspects presumed to be responsible for committing
the
murder of João Canuto be taken into custody pending trial,
this was not done, and they remained at large.

c. Once the investigation was concluded, the official reports
were forwarded to the Office of the Public Prosecutor, who received
them on
August 30, 1993. It was not until October to December of 1995,
however, that the Prosecution issued the information, or a little
over two years
after the results of the investigation had reached that office.
This delay is also a violation of Brazilian laws on criminal procedure.38

63. In this case, the Commission finds that the lack of efficiency
in the investigation into the murder of João Canuto, which
was reflected in
unjustified delays in completing that investigation, in addition
to the obvious negligence on the part of the Office of the Public
Prosecutor in
failing to issue the corresponding information, compromised the
international responsibility of the Brazilian State. In fact,
the unjustified delay in
both the police investigation and the procedures conducted by
the Office of the Public Prosecutor, which amounted to a total
of ten years, not
only exonerates the petitioner from his obligation to exhaust
domestic legal remedies, as was mentioned in the chapter regarding
admissibility,
but also is a violation of Article 8 of the American Convention
on Human Rights, in that it deprived the victim and his family
of the right to obtain
justice "within a reasonable period of time," as stated
in those provisions, and of Article 25, which establishes that
all persons are entitled to a
"simple and speedy remedy."

64. As regards the provisions of Article 1.1 of the Convention
on the obligation of the States Parties to guarantee that any
persons under their
jurisdiction may freely and fully exercise the rights recognized
in the Convention, the Inter-American Court of Human Rights39
has found that
stemming from this obligation are the duty to organize the Government
apparatus and structures through which public authority is exercised,
the
duty to prevent, investigate, and sanction any violation of rights
recognized by the Convention, and the duty to ensure that the
infringed right is
reinstated and, if appropriate, compensation for any damages caused
is paid.

65. Likewise, among the obligations arising from Article 2
of the Convention is the one establishing the obligation of the
States Parties to
adopt provisions of internal law. This provision states as follows:

If the exercise of the rights and freedoms referred to in Article
1 is not already guaranteed under legislative or other
provisions, the States Parties shall, in accordance with their
constitutional procedures and the provisions of this
Convention, undertake to adopt the laws or other measures required
to make those rights and freedoms effective.

66. To conclude, the Commission considers it appropriate to
refer to the obligation to guarantee the free and full exercise
of human rights
provided for in Article 1.1 of the Convention, as did the Inter-American
Court of Human Rights:

... is not exhausted with the existence of a regulatory order
designed to facilitate compliance with this obligation, but it
also involves the need for the Government to conduct itself in
a manner that provides for the effective guarantee of the
free and full exercise of human rights in actual practice.

67. Based on the foregoing, the Commission concludes that in
the case in point, by incurring unjustified delays in both the
police investigation
and the negligent action on the part of the Public Prosecutor's
Office in issuing the information, the Brazilian State violated
Article XVIII of the
American Declaration of the Rights and Duties of Man and Articles
8 and 25 of the American Convention on Human Rights, considered
in
conjunction with Article 1.1 of that legal instrument.

VII. PROCESSING BY THE IACHR AFTER APPROVAL OF THE REPORT AS
PER ARTICLE 50 OF THE AMERICAN CONVENTION

68. This report, previously approved by the Commission in its
97th Period of Sessions, in October 1997 following Article 50
of the American
Convention, was sent confidentially to the Government on December
1º, 1997 with a request to inform the Commission within three
months,
about any measures taken to fulfill its recommendations. The Commission
has not received answer from the Government, and has decided in
its 98th Period of Sessions in March 1998 to adopt it as definitive
report, as establish in Article 51 of the Convention. Based on
the previous
considerations.

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

CONCLUDES:

A. Declares that Brazil is responsible for the violations of
the following rights: the rights to life, freedom, and personal
security and safety
(Article 1) and the right to justice (Article XVIII) of the American
Declaration of the Rights and Duties of Man; and, the rights to
judicial
guarantees (Art. 8) and judicial protection (Art. 25) contained
in the American Convention on Human Rights, considered in conjunction
with
Article 1, Paragraph 1.l.

B. Recognizes that the Brazilian State is interested in improving
the situation in the State of Pará, through the efforts
of the Council for the
Protection of Human Rights (CDDPH) and other institutions, and
recommends that those efforts be intensified to prevent cases
such as the
present one from being repeated.

VIII. RECOMMENDATIONS

A. To ask the Brazilian State to ensure that its pertinent
institutions or agents expedite penal action with due diligence
and that its competent
legal institutions or agents hand down judgments promptly and
impartially and, in accordance with the seriousness of the crime
committed and
the applicable laws, mete out timely punishment to the individuals
involved in the murder of João Canuto.

B. To recommend to the Brazilian State that it make reparations
by paying compensation to the members of the victim's family for
damages
caused as a result of the illicit activities and the negligence
on the part of the State and its agents in performing and exercising
the duties of
public office in this case.

C. To recommend to the Brazilian State that, pursuant to Art.
28.2 of the Convention, it immediately take the pertinent steps
pursuant to its
constitution and laws to ensure that the competent authorities
of the State of Pará adopt the necessary provisions to
ensure compliance with
the commitments undertaken under the American Convention on Human
Rights.

IX. PUBLICATION

74. On March 10, 1998, the Commission sent to the Brazilian
State, Report No. 24/98 adopted in the instant case (Chapters
I TO VIII supra)
based on Article 51.1 and 51.2 of the American Convention, and
putting forward a period of one month for said State to adopt
the necessary
measures to fulfill the recommendations formulated therein, and
thereby remedying the situation under analysis. The Commission
has not
received answer from the Government to that effect.

X. FINAL ANALYSIS AND CONCLUSIONS

The Inter-American on Human Rights shall decide if the Brazilian
State has adopted adequate measures to fulfill the recommendations
included in this report. Considering that it has not received
any information indicating that those measures have been adopted,
and on the
basis of the previous considerations, as established in Articles
51.3 of the American Convention and 48 of its Regulations the
IACHR decides
to reiterate the conclusions and recommendations included in Chapters
VII and VIII supra, to make public this report and to publish
it in its
Annual Report to the General Assembly of the OAS.

On April 10, 1998, the Government of Brazil informed the Commission
that it is exploring in light of Article 48 (f) of the American
Convention,
the possibility of proposing a friendly settlement in this case.
To that effect, the Commission sent such communication to the
petitioners. At the
time of publication of this report their answer had not been received.

Endnotes:

* Commissioner Hélio Bicudo, a Brazilian national, did
not participate in the consideration and vote on this report,
pursuant of Article 19(2)(a) of the Commission's Regulations.

3. Article 58: When a government invites a mission to observe
in loco or gives its consent, it shall grant to the Special Commission
all the facilities necessary to carry out its mission. More specifically,
it shall undertake not to retaliate in any way against the persons
or entities that cooperate with the Commission by providing information
or testimony of any kind.

Article 59:

a) The Special Commission, or any of its members, may interview
freely and in private any persons, groups, entities, or institutions,
and the government must provide the relevant guarantees to any
of them that provides information, testimony, or evidence of any
kind to the Commission.

b) The Special Commission may use any appropriate means to
gather, tape, or reproduce information that it considers opportune.

It is evident from the above that the Commission may make use
of any reports or information it receives during its on-site visit
to present elements of proof related to the events or the case
that the information refers to.

9. The Court took into account in the first place that under
international jurisdiction, failure to observe certain procedures
is not always relevant, since what is important is that the purposes
for which the specific procedures were designed are met. (International
Court of Human Rights, Godínez Cruz Case, preliminary objections,
judgment of June 26, 1987, Paragraph 36).

15. Article 10 of Brazil's Code of Criminal Procedures establishes
a period of 30 days for completion of police investigations. In
the sub-judice case, it is obvious that this time limit was not
observed, since the police investigation lasted seven years and
six months.

21. This type of delays adversely affects the effectiveness
of domestic legal remedies, since it causes a deterioration of
the evidence, and especially evidence presented by witnesses who
have moved or tend to forget the facts, after so many years have
gone by.

28. According to Amnesty International's report, "Brazil,
Authorized Violence in Rural Areas," "... the number
of murders has been on the rise and the victims are carefully
chosen. Leaders of communities of farm workers, labor union leaders,
herders, nuns, priests, and attorneys who defend the rights of
farmers in land holding disputes have been the victims of threats
and attacks, and even on occasion of murder. These attacks and
murders are closely related to the degree to which the communities
of rural workers in question are organized or are active politically...".
Amnesty International, Brazil, Authorized Violence in Rural Areas,
page 8, September 1988.

30. The State has the legal duty to prevent, within reason,
violations of human rights... (Inter-American Court of Human Rights,
Velásquez Rodríguez case, judgment issued on July
29, 1988, par. 174).

31. The duty of prevention covers all those measures of a legal,
political, administrative, or culture nature that serve to safeguard
human rights and ensure that any violations of those rights will
be effectively considered and treated as an illicit act which,
as such, is liable to entail sanctions to the person who committed
them. (Inter-American Court of Human Rights, judgment of July
29, 1988, Velásquez Rodríguez case, Paragraph 175).

32. An illicit act in violation of human rights which could
not initially be directly imputed to a State because, for instance,
it was the act of an individual, or because the perpetrator of
the crime had not been identified, may entail the international
responsibility of the State, not for the crime itself, but because
of its failure to exercise due diligence to prevent the violation
or to deal with it as required by the Convention. (Inter-American
Court of Human Rights, Judgment of July 29, 1988, Velásquez
Rodríguez case, par. 172 in fine).

33. The police investigation was initiated immediately following
the murder on December 18, 1985, and it lasted until July 27,
1993, when it was concluded by the Division of Political and Social
Order (DOPS) of the Federal Police and sent to the Office of the
Public Prosecutor of Pará State, in Belém.

34. In its response on November 22, 1994, the government stated
as follows: "The police investigation into the murder of
Joao Canuto was completed in July 1993, and criminal proceedings
to determine the criminal responsibility of the persons possibly
implicated are still going on." Likewise, on December 18,
1995, it stated in its final comments that: "The Public Prosecutor
of the State of Pará delivered to the Ministry of Justice
a copy of the formal charges of aggravated homicide against the
persons accused of the murder of Joao Canuto."

35. In this case, the Court considered the possible delays
in the various stages of the process, the "overall analysis
of the procedure," namely, the reasonability of the time
throughout the proceedings, and concluded that "even if the
police investigation and the time taken by the Office of the Public
Prosecutor of the Republic of Nicaragua to file charges with the
judge of the trial court are excluded, by counting from ... the
date on which the judge issued the order to begin proceedings
up to the present time, when there still has been no final ruling,
over five years have lapsed, and this Court finds that this period
of time exceeds the limits of reasonableness as set forth in Article
8.1 of the Convention." Genie Lacayo case, Judgment dated
January 29, 1997, Paragraph 81.

36. Inter-American Commission on Human Rights. Petition filed
with the Inter-American Court of Human Rights against the State
of Nicaragua, page 8.

37. Article 10 of Brazil=s Code of Criminal Procedure states
that a police investigation must be completed in a period of 30
days, if it does not involve a case of flagrante delicto; otherwise
the period for completion of the investigation is 10 days. It
is clear that in the case in point, the police investigation,
which took 7 years and 6 months, far exceeded the peremptory period
of time stipulated by law.

38. Article 46 of the Brazilian Code of Criminal Procedure
states as follows: "The deadline for presentation of the
information in the event that the accused is in custody shall
be 5 days counting from the date that the Public Prosecutor's
Office receives the reports of the police investigation, and 15
days if the accused is at large or has been released on bail...".